The six options being considered by the Oireachtas abortion committee
Each option has uncertainties and pitfalls, says committee’s legal adviser Nuala Butler
Barrister Nuala Butler was asked to provide “outline advices” on the six options being considered by the committee.
She reported that it is “difficult, if not impossible, to achieve absolute legal certainty”. This applies of all six options facing the committee.
Her findings, which have been seen by The Irish Times, are summarised below.
Option 1: “Repeal simpliciter”
“In the short term, a simple repeal will provide a degree of immediate legal certainty,” Ms Butler advised the committee. Abortion would remain illegal save in the circumstances prescribed by the Protection of Life During Pregnancy Act. That act could then be replaced or amended by the Oireachtas.
However, the advice warns that over the longer term, there is a “low” possibility that the courts could find that there is a still a constitutional right to life for the unborn in the unenumerated rights section of the Constitution.
Ms Butler was also asked if repeal of the eighth amendment could lead to “abortion on demand”. She advised that it would be highly unlikely that the courts would find attempts by the Oireachtas to legislate for specific grounds for legal abortion to be unconstitutional.
Option 2: Repeal based on published legislation entrenched in the Constitution
Repealing the eighth amendment but accompanying it with legislation on abortion which is “entrenched” in the constitution “provides the greatest degree of legal certainty”, Ms Butler advises.
However, she says that there are two legal difficulties with the approach. One is that including an entire act in the constitution “is likely to prove at best cumbersome and at worse inconsistent with the form and structure and balance of the Constitution”.
In addition, it could not be changed “even in the most minor or technical sense” without a further referendum.
Option 3: Repeal based on legislation published in tandem with the referendum
Publishing legislation along with a referendum is “really a political rather than a legal exercise”, Ms Butler found. There would be no obligation on the Oireachtas to enact the draft legislation, and anyway, there is no guarantee that the legislation would be passed.
Simply publishing the legislation could not be regarded as a legally binding commitment to enact it, the advice says. And even if enacted, it would be open to a future Oireachtas to amend it.
Option 4: Repeal and replacement on specific grounds
This option provides for stipulating on what grounds a woman would be legally permitted an abortion, and is “potentially capable of providing a significant measure of legal certainty”.
However, it would have to be clear whether it is intended to remove the right to life of the unborn in the Constitution or to strike a different balance between the life of the unborn and the life of the mother.
Specific grounds for abortion could be stipulated in the Constitution, the advice says, but “in practice this is likely to prove very difficult as many of the grounds on which it might be anticipated abortion would be permitted (rape, incest, fatal foetal abnormality, etc) are inherently difficult concepts with attendant practical problems arising as to how they should be established and to whose satisfaction”.
Option 5: Repeal and replace on broad grounds and/or expressing a re-balancing of rights
This option would also feature many of the difficulties and uncertainties that arise with the previous option, Ms Butler says.
Option 6: Repeal and replace with provision conferring exclusive power on the Oireachtas to regulate
While this would be unusual, there is no legal or constitutional reason why it should not happen.
While this option would limit the power of the courts to interpret legislation on abortion, it would “give the greatest flexibility in terms of the future content of the law since it would be entirely a matter for the Oireachtas” to determine the legislation.
Ms Butler was also asked to comment on the UN Declaration on the Rights of the Child, which refers to the need for “legal protection, before as well as after birth”. However, it is unlikely that this could be relied upon in the Irish courts. In addition, she notes, “a right to life of the unborn is not reflected in the laws” of the majority of the states that signed the UN Convention on the Rights of the Child.